When Is a Father Not a Parent?
Byrd’s Eye View of the Law
Invasion of Privacy Act Creates Pitfalls
Petition Practice Pointers
How many parents does a child have? In most cases, of course, the answer is two: a mother and a father. Strictly speaking, however, the answer is only two in Tennessee if the parents are married to one another, the child has been legitimated or the subject of a paternity action. If the mother is unmarried she is the only parent; the biological father of the child- at least in the eyes of the law-has no parental rights.
If both the mother and the biological father agree, however, it is a relatively simple matter for them to legitimate their child. T.C.A. 36-2-201 et seq., Tennessee’s legitimization statutes, provide a procedure that results in the biological father becoming his child’s “legal” father. Once his child is legitimated, the father’s status as a parent is fully recognized by the law. He may seek custody; he may establish visitation rights with the child. In short, he enjoys the same benefits and responsibilities as would a divorced father.
If the mother desires to have the biological father assume a legal role, but he resists, she may file a paternity action against him. The paternity statutes (T.C.A. 36-2-101 et seq.), while originally intended merely to allow the mother to seek support, grant the biological father a legal relationship with his child. Once again, he may seek custody or visitation rights with his child after a finding of paternity.
But what if it is the biological father who desires to establish a legal relationship with his child and the mother who objects? Is there a mechanism in Tennessee law which allows a father to bring an action against the mother?
At first glance, it would appear the answer is no. In Matter of A, 735 S.W. 2d 232 (App. 1987), the Court of Appeals held a biological father has no standing to bring an action under the paternity statutes. T.C.A. 36-2-201(c), a 1994 amendment to the legitimization statute, states: “nothing herein shall be construed to authorize a.... putative father to legitimate a child... without the consent of the mother of such child.”
Despite the ruling in Matter of A and the language of T.C.A. 36-2-201(c), there is now a strong indication that the Tennessee Court would allow a biological father to “legitimate” his child over an unmarried mother’s objection. In five decisions beginning with Davis v. Davis, 842 S.W. 2d 588 Tenn. (1992), the court has recognized, under the Tennessee Constitution (Article I, section 8), a right of privacy for parents. While the court has not finished writing in this area, it is clear that the parental right to privacy includes both the right to be free from state interference in making decisions regarding one’s child and the recognition that a biological parent has a paramount right to a relationship with his child.
Davis, supra., which first recognized a parental right of privacy under the state Constitution, was followed by Hawk v. Hawk, 855 S.W. 2d 573 (1993), which held that parents had the exclusive right to make decisions regarding their child’s welfare unless there was a threat of immediate harm to the child. Hawk was expanded on recently in Bond v. McKenzie, 895 S.W. 2d 546 (1995), where the court stated emphatically that a fit parent (an unmarried mother) had the absolute right to custody of her child even if the child’s best interest might dictate some other placement.
The question of whether the rights which the court granted to married parents in Davis and Hawk, and to unmarried mothers in Bond, apply to biological fathers was answered in Nale v. Robertson, 871 S.W. 2d 674 (1984). In Nale the adversaries were the biological father on one side and the mother and her husband (whom she married after the birth of the child involved). The mother sought to have her husband adopt the child; the father sought to legitimate his child and stop any adoption. In ruling in favor of the biological father, the Supreme Court held that his right to establish a legal relationship with his child rested on the same constitutional foundation recognized in its earlier cases. The court held that biological father’s petition for legitimization could only be denied if the evidence against him would support a termination of his parental rights.
It is somewhat puzzling that the legislature amended the legitimization statute to clearly require maternal consent after publication of the Nale decision. That statute as now written is open to two interpretations. If it is construed to mean only that the issue of paternity cannot be litigated in a legitimization (in other words, the mother must “consent” that the petitioner is the biological father), it simply tracks the supreme court’s ruling in Nale (in which paternity was undisputed). If the statute means what it seems to say, that a mother may, for any reason or no reason at all, prevent a biological father from establishing a legal relationship with his child, it would appear to be unconstitutional.
Even if the first interpretation of the statute is correct, it may well be unconstitutional. Given the high degree of accuracy of DNA paternity testing (and the relative low cost and simplicity of the test), it is difficult to support a holding which would deny a man an opportunity to prove he was the father of an illegitimate child simply because the mother makes a naked denial of his biological connection. It is the biological link which matters most in parenthood, not whether it is recognized by one parent ( in paternity cases, of course, a defendant’s good faith belief he is not the child’s father is totally irrelevant).
If the Supreme Court continues on the path it began with Davis v. Davis, supra., it will most likely soon grant a biological father the right to establish a legal relationship with his child over the objection of an unmarried mother. While such claims will be relatively rare, allowing them will grant unmarried fathers the right to claim the benefits, as well as the responsibilities, of parenthood. r
Charles Clifford, Esq. is in private practice in Maryville, TN and represented the prevailing party in the ground-breaking frozen embryo case of Davis v. Davis 842 S. W. 588 Tenn. (1992)
Family law practitioners are encouraged to take a multidisciplinary approach to the problems of families in divorce and custody situations. An abundance of literature is available in other areas of discipline including psychology and economics, which can and should significantly influence progress in the area of divorce and custody issues.
Lawyers too often depend upon the statutes and case law for developing arguments, when in fact, the answers to the individual problems involved in divorce and custody issues are found not in the statutes or the case law, but in professional articles and writings in the disciplines of psychology, economics and statistical probability.
Among the volumes that should be in the domestic relations lititgator’s arsenal are the following books: L. WEISMAN, THE DIVORCE REVOLUTION, (1985). This book chronicles the unexpected social and economic consequences for women and children in America as a direct result of inadequate provision for women and children in divorce custody decrees. Although this book was written in 1985, before the Tennessee Child Support Guidelines, it is still indicative of some of the problems with the divorce code commission of the family law section will be confronted in the future; R. HERRINGSTEIN AND C. MURRAY, THE BELL CURVE, INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE, (1994). Although a controversial book and often misquoted for recognizing different cognitive levels within ethnic categories, this book shows the wide range of intertractable social problems, the decisive correlation between a high incidence of the problem and the low intelligence of those who suffer from it including high school dropouts, unemployment, work-related injury, out of wedlock births, crime, divorce and many other social problems. The author’s intention is to face up to undeniable statistical proof to assess the nation’s problems and make realistic plans for addressing them; N. PALMER, A. TANGELO-RODRIGUEZ, WHEN YOUR EX WON’T PAY, GETTING YOUR KIDS THE FINANCIAL SUPPORT THEY DESERVE, (1995). Nancy Palmer who is the chairperson of the Family Law Section of the Florida Bar. She is also a certified domestic relations mediator and is very active in the family law section of the American Bar Association. She is presently being considered as a candidate for the directorship of the mediation program at Duke University. Her book not only gives sample work sheets and information on family law enforcement in the fifty states, it allows custodial parents to face the non-support issue with information which will help them assert their rights during divorce and after.
Mitchell Byrd is a sole practitioner in Chattanooga, TN. He is a charter member of the Family Law Section of the Tennessee Bar Association, a charter member of the Family Law Section of the Tennessee Trial Lawyers’ Association, a member of the American Bar Association, Family Law Section. His certification is now pending before the National Board of Trial Advocacy. Mr. Byrd’s column, Byrd’s Eye View, will be a regular feature of the TBA Family Law Newsletter. Mr. Byrd will profile three different books or articles from different disciplines in each newsletter. r
In 1994, the Tennessee State Legislature created a new criminal offense entitled Invasion of Privacy. TCA 39-13-601 et seq. In addition to creating a criminal offense, the Legislature also statutorily recognized the civil claim for the same defined conduct.
Since this statute is located in the criminal section of the code, many family law practitioners are unaware of its existence.
There have been no reported decisions in Tennessee allowing for a recovery for invasion of privacy, although the Tennessee Supreme Court has indicated that such a cause of action exists. Martin v. Senators, Inc., 418 S.W. 2d, 660 (Tenn. 1967). The creation of this statutory right, however, will most likely create opportunity for case law to specifically address these issues.
The statutes basically outlaw the unauthorized interception and recording of electronic communications where the parties have not consented to the interception of the conversation. This act closely parallels the Federal Act which is codified at 18 USCA 2511 et seq.
The Tennessee statute additionally recognizes the offense as it also applies to the unlawful photographing in violation of a person’s interest. TCA 39-13-605 makes it an offense for a person to knowingly photograph or cause to be photographed an individual, without the individual’s consent and when such individual is in a place where there is a reasonable expectation of privacy. This statute, however, also allows the minor’s parent or guardian to give consent in place of the minor.
A potential pitfall created by the recording of electronic communications develops when it is realized that this statute does not allow for a parent to consent in place of a minor for the purpose of recording a phone conversation, thus, if a non-custodial parent calls their minor child, and the custodial parent tape records the conversation, then arguably this flies in the face of the statutes. Attorneys need to be aware that such factual scenarios could subject their client to both criminal and civil penalties.
In many instances, particularly where a parent is trying to stop visitation or to require supervised visitation, a parent will often tape record the conversations between their child and the non-custodial parent. A plain reading of the statute does not appear to allow this behavior.
When this is read in conjunction with formal ethics opinion 86-F-14 (a), a lawyer needs to exercise extreme care in these areas. This ethics opinion states “secret recordings of lawyers, clients, witnesses, or other persons in civil matters is in violation of DR 1-102 (A) (4) of the code and prohibited.” Obviously, there are exceptions to this prohibition which is outlined in the ethics opinion. Laura Chastain, of the Board of Professional Responsibility, when questioned on this issue, urges attorneys to conduct themselves in accordance with the intent of the code. Formal request of an ethics opinion could provide additional guidance.
As mentioned previously, attorneys should also be careful in authorizing investigators or others to secretly photograph individuals where a reasonable expectation of privacy is apparent. That particular statute not only makes liable the one who takes the photograph to be taken.” This language could, arguably, include the attorney who requested the photographs.
These issues will undoubtedly create litigation that will eventually makes its way through the appellate process. Until that time, however, attorneys should exercise caution in dealing with these issues. r
Kevin Shepherd is editor of the Family Law newsletter. Shepherd is an attorney in private practice at 404 Ellis Avenue, Maryville, TN 37804, (423) 982-8060, Fax (423) 982-0138.
Tennessee Rules of Civil Procedure 7.01 provides for the filing of a complaint and answer, and thereafter a court has jurisdiction over the civil action. TRCP 7.02 states that an application to the court for an order shall be made by motion which shall state with particularity the grounds therefore and shall set forth the relief or order sought. Thus, the general rule is that whenever the court has jurisdiction of a “civil action” as defined by TRCP 2., motions by whatever name are authorized as applications to the court for an order.
Nonetheless, many domestic relations courts, including Davidson County, promote the use of petitions which are served on a party (or the party’s attorney if the attorney agrees), often after the divorce is final. “Petitions” are frequently verified are in possibly more detail than normal motions and are treated and docketed differently than normal motions. For these reasons, it is suggested that the following motions be labeled “petitions” when filed in the local Domestic Relations Courts:
1.Contempt, indirect, either criminal or civil.
2.Any other extraordinary process, including restraining orders and injunctions not prayed for in a pleading.
3.Any application to the court after the civil action is closed (order becomes final).
Practice Pointers:
1.The style of a petition should remain the same as the pleading in the civil action, even after the case is closed.
2.The first paragraph of a petition should identify the petitioner(s) and the respondent(s) and any prior order in the matter.
3.Petitions for any extraordinary process, including contempt, should be verified (not just acknowledged) by the petitioner and should allege facts sufficiently explicit to justify the requested order.
4.A petition should contain prayers setting out clearly the exact action requested of the court. It is required that a petition include a prayer for the court to set a date and time for hearing and order the respondent to show cause why the prayer should not be granted (otherwise it will be necessary to file a motion to set a petition for hearing). A proposed order with blanks left for a date and time for a show cause hearing and a completed summons form should be submitted to the clerk with a petition. The court will normally set a show cause hearing about four weeks after the filing of a petition in order to give ample time for service of summons.
5.A petition to find the respondent in contempt should identify the statutes charged, state the specific penalties sought, and state whether it is for criminal contempt or civil contempt.
6.Fourth Circuit will issue routine harassment type restraining orders without motion or petition—submit an affidavit and proposed order. The restraining order will
stand until trial, unless opponent moves for relief from the order.
7.If the action prayed is extraordinary in nature, the statement, “THIS IS THE FIRST APPLICATION FOR SUCH EXTRAORDINARY PROCESS” should be included at the end of all petitions seeking specific and different relief for the first time.
8.The Domestic Relations Summons form No. GR-102 can be used with a petition. Cross out “Complaint of Divorce” and type above, Petition for ____________” in the paragraph advising 30 days for an answer.
(See Sections 9 and 12 for specific procedures regarding petitions in Fourth and Second Circuit Courts.)
Editor’s Note: Some jurisdictions in Tennessee appear to differentiate, at time, between the filing of a “Motion” versus the filing of a “Petition,” although no statewide rules make this distinction. This article provides practical assistance in the preparation of a Petition.
(Prepared by William B. Bradley, Esq. of the Nashville Bar)